Kobe Case's Mental Health Issues

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Halfway between incident and jury selection, however, the scorecard doesn't look good. Legitimate questions about whether the medical history of Bryant's accuser should play a role in his sex assault trial have been far overshadowed by the typical knee-jerk rape-case reaction of virtually everyone involved in the case. And, in the main, media outlets that ought to know better have succumbed to an overly simplistic view of what is in truth a very complicated set of issues.

There has been a lot of coverage about the mental health history of the alleged victim, especially after a passel of court filings earlier this week. But most of that coverage has focused upon the process by which the parties are fighting to determine whether jurors ultimately will hear about that history. And the rest of the coverage either has sensationalized the issue as the "re-victimization" of Bryant's accuser or has confused the attack on the alleged victim's credibility with an attack on mental health treatment in general.

A vivid example of this phenomenon is a recent "so what" column by Jim Spencer in the Denver Post. Spencer went out and found an esteemed expert in psychiatry who, quite naturally, defended both his craft and people with mental health problems. The doctor's point? That people who have a psychological illness aren't necessarily bad people who do bad things. Spencer's point? That Bryant's lawyers ought to be ashamed of themselves for raising the alleged victim's medical history as a defense. The doctor is obviously right, but his point is irrelevant to the mental health issues raised by the Bryant defense. Spencer? He's just plain wrong.

The Bryant case is not about the vices and virtues of mental health treatment. It is not about the prejudices some potential jurors may have about people with mental health problems. The alleged victim in the case is not on trial and in danger of being deprived of her liberty because of her purported history of mental health treatment. The case is simply about whether or to what extent a young person's mental health (and mental health treatment) played a role in affecting her perceptions about an episode that is now very much in dispute. You cannot separate the mental health history of Bryant's accuser's from the case any more than you could separate physical evidence from Bryant from the case.

Is this calculus insensitive to the alleged victim? Perhaps. But a felony trial ain't beanbag. Bryant's alleged victim has accused him of rape, and if the defendant is convicted, he could spend the better part of his adult life in a Colorado state prison. Accordingly, he has a constitutional right to confront the witnesses and evidence against him. And you really don't need to be a doctor or a lawyer to understand why Bryant's attorneys would want to explore whether his accuser's medical past had some bearing on her conduct and beliefs last June.

Why? Although physical evidence will be as important in this case as it always is in a rape case, Bryant's early concession that he had sex with his accuser makes the issue of her consent the most important disputed issue left to resolve at or before trial. And because the defense of consent necessarily relates to the alleged victim's state of mind, questions about her state of mind before, during and after the incident seem obviously relevant to me and to many Colorado judges who have looked at similar issues in similar cases.

If Bryant's accuser had no prior medical history, or no prior relevant medical history anyway, none of us would even be talking about this issue. But the alleged victim in this case apparently has some sort of history of treatment for mental health problems. Did she suffer last summer from bipolar disorder or depression? I have no idea. If she did, might that have influenced her perceptions about her contact with Bryant? Beats me. Do these seem to be the right kinds of questions the defense should be raising and the judge considering? Absolutely. And if the judge ultimately decides that some or all of the alleged victim's medical past is relevant I have no problem permitting jurors to make the final call on whether that past bore upon any "motive or scheme" the defense says she concocted to get at Bryant.

The Bryant case does not present a Hobson's choice between honoring the seriousness of mental illness in this country and protecting a criminal defendant's presumption of innocence. That's the false premise of Spencer's column and it's a strawman argument that others have made and probably will make from now until the moment Bryant's jury comes back with its verdict. The fact is that you can respect the rights of people who are treated for mental illness and still believe that the accusations they make ought to be subject to fair scrutiny. And you can believe that people who are treated for mental health problems are good people who aren't inclined to do bad things, and still want as many relevant facts as possible to come out in a criminal trial. To argue otherwise is to put the privacy rights of Bryant's accuser well ahead of the fair trial rights of Bryant himself.

So my journalist colleagues missed an opportunity this week to perform a wonderful public service. Instead of focusing upon the more salacious parts of the public filings in the case, they could have focused instead upon the important medical information about bipolar disorders and depression that was attached to a defense filing. Instead of hammering on Bryant's attorneys for doing their job, they might have educated lawyers and judges and potential jurors around the country about how mental health problems and treatment can interact and intersect with the law. Now that would make any esteemed psychiatrist look on the bright side.

By Andrew Cohen